Decision #68/16 - Type: Workers Compensation
Preamble
The worker is appealing decisions made by the Workers Compensation Board ("WCB") which denied responsibility for her 2014 claim and for wage loss benefits related to her 2008 claim. A hearing was held on April 7, 2016 to consider the worker's appeals.
Issue
Date of Accident - January 20, 2014:
Whether or not the claim is acceptable.
Date of Accident - January 1, 2008:
Whether or not the worker is entitled to wage loss benefits.
Decision
Date of Accident - January 20, 2014:
That the claim is acceptable as a recurrence of the January 1, 2008 claim.
Date of Accident - January 1, 2008:
That the worker is entitled to wage loss benefits.
Decision: Unanimous
Background
On January 31, 2014, the worker filed a claim with the WCB for injury to both hands, wrists and fingers that she related to her employment as a healthcare aide with the accident date listed as January 20, 2014.
On February 3, 2014, a WCB adjudicator spoke with the worker and documented the following:
…she started working with this company in Feb/07. She had no issues with any products until they switched to [Brand] disinfectant in the fall of 2007 which they use to clean the tubs…She continued to use this product for 9 months and her arms were really irritated - she saw [dermatologist] who confirmed she was allergic to the product and she stopped using the product. She states once she stopped using the product and bathing clients her arms cleared up and she was fine for approximately 8 months.
Her arms have been fine ever since, however her hands became irritated in 2009. She is not sure what is irritating her hands but even touching the laundry irritates her hands. She thinks touching door knobs and books bothers her hands as other staff touch them and they may not have washed off the [disinfectant] completely, so she may be touching residue. She states her hands are tender and there are open wounds - they look like they have been burned. Since being away from work her hands are starting to heal. Her hands clear up on her holidays or days off from work. She has always worn blue latex free and powder free gloves. She brings her own hand soap to work and does not use their soaps or sanitizers. She states she wears the gloves for most of her shift…She states she has not had any prior skin conditions.
In a further telephone conversation with a different adjudicator on February 25, 2014, the adjudicator noted:
She has had flare ups of the rash on her hands periodically over the years despite no longer working with [disinfectant]. She was not aware she could claim WCB benefits so any time missed was covered as sick time. Her belief is she is so sensitive to the cleaner that even minimal exposure to the product causes her to have a reaction. She indicates that the rash usually clears up quickly once she is away from work…She feels that she may now be sensitive to the soaps or products used to clean linens, etc. She indicated that at the time of this last flare up she worked Monday through Friday and most of Saturday (January 25) with no trouble. Around supper time on Saturday she began to notice her hands were sore and bothering her.
On February 25, 2014, the WCB adjudicator spoke with the worker's current manager who stated that in the 2 years she had worked with her prior to the flare-up in January 2014, she was not aware of the worker having any rash-related difficulties, also there had been no change in the products or gloves (nitrile powder free) that they used at work.
In a decision dated February 27, 2014, the worker was advised that the WCB was unable to find that her condition, diagnosed as dyshidrotic hand dermatitis, was caused by her employment as there had been no change in products or gloves used at work nor had there been any changes in the type of work that was done to explain the cause of her symptoms. It was noted that "dyshidrotic hand dermatitis is a chronic condition that can be brought on by various non work-related factors."
On October 1, 2014, a union representative submitted that the worker's skin condition was directly related to the chemicals used in her workplace based on the following evidence:
The opinion of the treating dermatologist that the worker's dermatitis was work-related and that the repeated eczema flare ups had damaged her skin to the point that it now flared up with exposure to a wide variety of different irritants in the workplace.
Although the worker was able to use cotton gloves and various other treatment regimens to allow her to continue to work in her workplace, she was now missing work as a result of the work-related eczematous dermatitis that she filed her original claim for.
The worker continued to have symptoms on an ongoing basis and the symptoms largely cleared up when out of the workplace for any period of time.
On October 22, 2014, the worker was advised that no change would be made to the original decision to deny her claim. The WCB adjudicator stated, in part:
…the medical information on file shows that initial symptoms when in direct contact with the [Brand] disinfectant affected only your arms. You indicated that symptoms to your hands developed in 2009 and were first documented by [physician] on March 25, 2013, after several years of no direct contact with the [Brand] disinfectant. This information along with the fact you continued to wear protective gloves does not support a relationship between the development of the symptoms to your hands and an exposure to the [Brand] disinfectant in the workplace… Although there is medical evidence to support ongoing symptoms to your hands since March 2013, we are unable to determine a work related cause.
On March 23, 2015, the Worker Advisor Office provided the WCB with a February 23, 2015 medical report to support that there was an association between the worker's hand condition and 2008 incident. On April 10, 2015, the WCB determined that the information provided was not new to the claim and as such, no change would be made to the original decision. On April 10, 2015, the worker advisor appealed the decision to Review Office.
On May 26, 2015, Review Office found that the claim was not acceptable. Review Office considered the file information and concluded that:
There was no presenting evidence that the worker came in direct contact with the disinfectant at or near the time of her flare up in January 2014 and therefore it was unable to confirm a specific event "arising out of" (related to the worker's employment), that occurred while she was "in the course of" (at work at the time), her employment.
Review Office was not able to confirm an occupational disease given the idiopathic nature of the diagnosis (dyshidrotic dermatitis), the lack of continuity between the initial incident in 2008 and the worker's symptoms, and the speculative nature of the specialist's medical opinion.
In denying the worker's appeal for claim acceptance, Review Office provided an obiter comment that "Should the worker wish to pursue a claim for the allergic reaction experienced in 2008, she would need to do so by contacting the WCB and filing a new claim for that incident."
Pursuant to the decision of the Review Office regarding the 2014 claim, the worker filed a claim with the WCB on June 1, 2015, for an acute injury related to her wrists and arms which she related to using a certain disinfectant during the course of her employment as a healthcare aide. The date of accident was listed as January 1, 2008. The worker noted that in 2008 she specifically missed February 8 and 14; May 10, 14 and 21; June 4; September 2; and November 28, all related to her bilateral arm condition for medical appointments or days she remained at home due to severe outbreaks.
On July 10, 2015 the Employer's occupational health nurse submitted the material safety data sheet ("MSDS") for the disinfectant to the WCB.
On August 19, 2015 the adjudicator placed a memo on file of a discussion with the employer. The employer had stated there was no record of time loss in the fall of 2007. In 2008 the worker had called in sick on February 8, May 10, June 4 and September 2. The period February 29, March 1, 2, 6, 7, 8 and 9 had been coded as "unpaid other." The employer noted they do not keep specific call records as to reasons that may or may not be provided when calling in, so she was unable to advise if the time loss was related to the compensable symptoms.
In a decision dated September 2, 2015, the worker was advised that following an investigation which included a review of medical information, her claim for compensation was accepted by the WCB. The adjudicator advised, however, that the WCB could not establish that her days of time loss from work in 2008 and her doctor's appointments were related to her compensable injury, and therefore she was not entitled to wage loss benefits.
On September 17, 2015, the Worker Advisor Office appealed the WCB's decision that the worker was not entitled to wage loss benefits for her compensable bilateral wrist and arm condition to Review Office. The worker advisor stated in part:
[The worker] says after bathing patients her arms from wrist to elbow would burn and swell. She saw her doctor January 2008 who prescribed a cream and referred her to dermatologist…The appointment was not until November 28, 2008 and in the meantime [the worker] continued to bath patients as the employer said her GP could not take her off scheduled duties. [The worker] said her arms became progressively worse and would crack and bleed.
The worker advisor indicated that the worker took time off work due to her compensable wrist and arm symptoms on February 8, 29, May 10, June 14, and September 2, 2008. The worker was also claiming wage loss benefits for February 14, May 14 and May 21, 2008 for doctor appointments for her arm and wrist condition.
On October 6, 2015, Review Office determined that there was no entitlement to wage loss benefits. Review Office said it was unable to identify extenuating medical circumstances, clinical findings or medical reference to the dates in question that the worker's skin condition prevented her from performing work. The employer indicated they had no record or documentation from 2008 that supported the worker's time loss was claim-related. In keeping with Board policy, Review Office found there was insufficient evidence to support that the worker's time loss from work in 2008 was related to the compensable condition.
On October 30, 2015, the Worker Advisor Office appealed Review Office's decisions dated May 26, 2015 and October 6, 2015 to the Appeal Commission, and an oral hearing was arranged.
Reasons
Applicable Legislation and Policy:
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.
Subsection 39(1) of the Act provides that wage loss benefits will be paid: "…where an injury to a worker results in a loss of earning capacity…" Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years. Subsection 27(1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
Policy 44.10.20.50.10, Recurring Effects of Injuries and Illness (the "Recurrence" Policy) sets out the principles to guide the WCB in distinguishing between a new and separate accident and the recurring effects of a previous injury or illness. It provides in part:
Policy
…the WCB must next decide whether the worker has suffered a new accident or a recurrence.
1…The distinction between a new accident and the recurring effects of a previous injury or illness will be based upon whether the current loss of earning capacity is a consequence of the original compensable injury or illness or an intervening incident event, or exposure that contributed to the injury.
and further:
3. Recurrence
If the WCB determines that the current loss of earning capacity is not the result of a new and separate accident, then the current loss of earning capacity will be considered a recurrence of the effects of a previous injury or illness. A recurrence is a clinically demonstrated increase in temporary or permanent impairment which results in a current loss of earning capacity, or a relapse of an injury which has been directly related to a previous compensable condition which results in a current loss of earning capacity.
The Worker's Position:
The worker was represented by a worker advisor at the hearing who made a presentation on her behalf. The worker answered questions asked by her representative and by the panel. It was the worker's position that exposure to the disinfectant was the cause of her acute condition and subsequent time loss from work in 2008 and her ongoing difficulties and wage loss in 2014.
It was submitted that the worker was exposed to disinfectant for an extended period of time over the course of one year that caused severe blistering and open wounds on her forearms, wrists and eventually her hands of both upper extremities. The worker explained her daily duties, routines and responsibilities to the panel.
In regard to the 2008 time loss claim, it was the worker's evidence that in the fall of 2007 after her first use of a new tub and disinfectant that was introduced into the workplace, she felt irritation to the skin of both arms and hands. The worker testified that she bathed residents two to three times a week and her wrists to elbows got worse, arms swelled, skin felt tight, red, painful and hot, like burns that began to split open. She went to her family physician where she was diagnosed with eczema.
The worker stated that a referral was made to a specialist and she was prescribed cream for her arms. At an appointment on May 14, 2008, she was prescribed a different cream to deal with a skin rash on both forearms and wrists. A week later, on May 21 her family physician recommended she cease bathing residents until she had seen a dermatologist.
Referencing pictures provided to the panel, the worker stated at that time, the cuts in the pictures resembled exactly what she had on her forearms. She noted the cuts which she estimated were approximately one eighth of an inch deep were "probably three inches long…it was right from where my elbow bent, right to my wrist… just like my skin split." When asked about the bleeding, she responded "I was standing at the desk and my, the blood was dripping down from, like, I was like this, and the blood was dripping down my arm onto the desk."
It was the worker's evidence that while she awaited her November 28, 2008 appointment with the dermatologist:
I continued to perform all of my job duties, as my employer told me that my family doctor could not remove me from my scheduled duties, only a specialist dermatologist could. I had to continue bathing residents and using [Brand] disinfectant…
In regard to the sick days she took in 2008, she stated "there was five dates…February 8th, February 29th, May 10th, June 14th and September 2nd." She further noted "I was off work in 2014 when [dermatologist] took me off work for two months…then I went back to work in April 2014." She identified that she saw her family physician on February 14, 2008 for lesions to her right thumb and between her ring and middle finger. On May 14, 2008 she had a skin rash on both arms and wrists. She went to the dermatologist in Winnipeg on November 28, 2008 and returned in March 2009 for results of the skin patch test, which gave confirmation that the disinfectant was the source of her allergic reaction.
In regard to the claim in 2014, the worker's position was that the dominant cause of her dyshidrotic dermatitis was occupational factors rather than non-occupational ones, including a predisposition, and therefore she had an occupational disease. It was submitted that there was no evidence of difficulties with her hands, wrists, arms or any other skin allergies prior to 2007. It was stated that she had "nothing until [Brand] disinfectant was introduced…" She further noted "Each time I bathed the burning, tightness, redness and pain would get worse."
It was submitted that while cleaning the tub with disinfectant, she used the rubber green gloves supplied and also wore a full length rubber apron, a face visor, and a face shield if there was any splash from the disinfectant. She further noted that tub chairs the residents use in the tub were also cleaned with the disinfectant using a brush and then the chairs were rinsed and wiped down with the bath towels. The worker stated:
Dr [dermatologist] also said you could rinse the tub 100 times each time and never completely get rid of all of the residue from the disinfectant. [Dermatologist] also told me that the extended exposure to [Brand] disinfectant when they had me bath for those nine months until I had to wait to see him…he said I would have issues with my hands and fingers within a year.
It was the worker's evidence that when she stopped bathing clients, her arms cleared up completely. However, in the spring of 2009 she was getting cuts, red patchy sore areas on her hands, fingers and wrists "like paper cuts" that would come and go. The condition worsened and she developed "small open sores on her fingers that looked like small blisters with the skin removed" and would be very sore, painful, dry and scaly. This continued on during 2011 and 2012. On March 5, 2013 she returned to [dermatologist] who diagnosed her with chronic hand dermatitis. He directed her to use latex-free powderless gloves, a gentle skin cleanser and barrier cream.
It was the worker's evidence that other duties were affecting her hands and arms, that handling linen and towels would irritate her and the soaps and sanitizers began to cause irritation.
The worker advised that she has moved to a different facility and is no longer required to bath patients in a tub, but does bed baths where there is no direct exposure to the disinfectant. She notes her hands are much better but still suffers itching, soreness, small cuts, tightness, irritation and red patchy areas. She still uses powderless latex gloves, cotton liners, gentle hand cleaners, prescribed creams and compounds that ease the discomfort but this is not a cure.
It was submitted that the evidence on file and the worker's testimony show that the disinfectant used is responsible for her arm, hand and irritant dermatitis, confirmed by her dermatologist through a patch test. Further, the skin damage caused by chronic exposure to the disinfectant in 2007 and through 2008 resulted in her skin becoming more susceptible to environmental stress and triggered her severe attack of dyshidrotic eczema.
The Employer's Position:
A representative of the employer appeared at the hearing. It was the employer's position that while they agree with the Review Office decision to deny the 2014 claim, they agree with acceptance of the 2008 claim.
It was submitted that it is fairly well established that the worker developed an allergy to the chemical used in the workplace around that time. Also, it is generally accepted that when an individual develops an allergy to a substance or chemical, that allergy worsens with ongoing and repeated exposure to that chemical.
The representative stated that the decision to accept the 2008 claim was correct, that the substance was introduced into the workplace about a year prior, sometime in 2007. Since the 2008 claim is acceptable and has been identified as the root cause of her condition, it is the employer's position that any subsequent periods of disability resulting from that 2008 injury should be adjudicated and paid, if applicable, on that 2008 claim.
It was submitted that all time loss incurred after January 2008 related to the worker's allergic skin reaction, including future exposures and problems down the road, should be adjudicated as a recurrence of the accepted 2008 claim. The employer has accepted that the introduction of the disinfectant caused the allergy.
The representative noted that the employer has placed the worker in a long-term accommodation and made every attempt to avoid contact with the disinfectant but things are tracked everywhere in the facilities and the employer believes this is the best that can be done under the circumstances. The employer submits that any further allergic skin related reactions are an aggravation of her compensable 2008 claim and any periods of disability should be brief, until the reaction ends, and should be covered on that 2008 claim.
Analysis:
The issues before us are claim acceptability for date of accident January 20, 2014 and entitlement to wage loss benefits for an accepted 2008 claim. For the appeal to be successful, the panel must find that the worker suffered an allergic reaction in 2008 that led to the diagnoses of dyshidrotic eczema and sensitization to other cleaning agents in her workplace and suffered a recurring loss of earning capacity. On a balance of probabilities, we are able to make those findings for the reasons that follow.
The panel carefully examined the evidence on both of the worker's claim files and the oral evidence presented at the hearing. The panel began with the material safety data sheet for the disinfectant product. The panel notes the following information from the MSD sheets:
The product was labelled as a corrosive.
The chemical names within the product were four (4) compounds of ammonium chloride.
The Toxicological Properties listed included;
Effects of acute exposure to skin - contact can cause redness, burns, pain and blistering.
Effects of chronic exposure to skin - corrosive to the skin and eyes upon direct or prolonged contact.
Sensitization to product was noted - In rare instances.
Our analysis of the information of the MSDS shows that the disinfectant she was exposed to had the capacity to cause the symptoms she reported after using the product.
The worker's testimony at the hearing confirmed the presence of the symptoms, their progression and alternate sources of irritants. She had stated in part:
Bathing residents two to three times weekly, my wrists to my elbows got progressively worse, my arms began to swell, skin began to feel tight, very red, very painful and very hot…Felt like they were burns. The skin on my arms began to split open. I had open wounds and my arms would bleed…I went to my family doctor [name] in February 2008, with lesions to my right thumb and in between my right ring and middle finger.
I had several open wounds all over…the blood was dripping down my arm onto the desk. We bathed between 9:00 and 11:30…I would say by 1:30, 2:00 that afternoon I had already had open wounds on my arms…It wasn't like a constant bleed…maybe three times where my arms actually bled…and one of those times was in the workplace.
The worker's other exposures were noted to be, "I noticed that handling bed linen, face cloths, towels, soakers, linen provided…would irritate my skin. Hand soap provided from the employer and sanitizers would also irritate my skin. I have had irritation from resident's clothing as most of the residents get their clothing washed in the laundry department."
When asked how the condition affected her, she had responded:
I suffered a great deal of pain on my arms. They were split open, and this caused me great embarrassment as well. People would look at my arms and go the other way…I was in [store] and walking down the aisle, and I had a woman and her child coming towards me, and I could tell, she looked at my arms, she grabbed her son and took off the other way, like I had a flesh eating disease.
The panel finds that the worker was exposed to a disinfectant in the workplace during 2007 and 2008 that possessed properties that would lead to skin damage and allergic reactions.
The panel then turned their attention to the diagnoses on the file. The panel places a great deal of weight on the letter from her treating dermatologist. The letter stated in part:
The skin test for [disinfectant] performed in 2008 confirmed that this chemical was responsible for [worker's] arm and hand condition, an irritant contact dermatitis…
I believe that the skin damage caused by chronic exposure to [disinfectant] in 2007 resulted in her skin becoming more susceptible to environmental irritants such as soap, water and detergent. Repeated exposure to these skin irritants in turn triggered a flare of her dyshidrotic eczema.
Although dyshidrotic hand eczema is an inherited skin disorder, it is normally dormant until it is precipitated by a severe psychological, physical and/or environmental stress. As stated by the patient, she did not have any previous history of skin problems until her workplace began to use the disinfectant [Brand] in 2007. Ultimately, this chronic skin damage triggered her severe attack of dyshidrotic eczema…
The panel accepts and adopts this opinion of the dermatologist that the diagnoses related to the 2008 exposure in the workplace are irritant contact dermatitis and onset of dyshidrotic eczema.
The panel finds that the worker's exposures to the disinfectant caused her irritant contact dermatitis, and led to the later diagnosed allergic dyshidrotic eczema and also the sensitization to other cleaning agents in her workplace.
The panel further finds that her allergic condition in 2008 is responsible for a number of recurrent episodes of skin lesions and allergic reactions throughout 2009 to 2014 that the worker required treatment for and, in some instances, resulted in a loss of earning capacity. The panel therefore finds that the worker's 2014 claim is acceptable as a recurrence of her original January 2008 claim.
While the worker's position for acceptance of the 2014 claim as an occupational disease was put forward, the panel notes its decision that the 2008 claim is responsible for her current condition and ongoing wage loss benefits makes that issue moot.
Regarding issue 2, based on the evidence provided by the worker regarding peoples' reaction to the visible lesions, blisters and scaly condition, as well as the discomfort that would arise from time to time, the panel finds that it was reasonable for the worker to miss work on February 8th, February 29th, May 10th, June 14th and September 2nd, 2008. The panel notes medical evidence submitted prior to the hearing and physician's charts on the file show the worker did attend for treatment on February 14, May 14, and November 28, 2008 suggesting that the worker's condition was quite problematic in that general period. The panel finds the worker is entitled to wage loss benefits for these specific days on the January 1, 2008 claim.
At the hearing, the worker noted she was off work in 2014 when the treating dermatologist took her off work for two months and she returned to work in April 2014. As this matter has not been adjudicated by the WCB, the panel makes no finding on entitlement to wage loss benefits beyond the dates specific to 2008 as noted in the within decision.
Based on our analysis and the foregoing reasons, the panel finds, on a balance of probabilities, that the worker is entitled to wage loss benefits related to her claim for the date of accident January 1, 2008.
The worker's appeal is accepted on this issue.
Panel Members
M. L. Harrison, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
P. Walker - Commissioner
Signed at Winnipeg this 11th day of May, 2016